Room to Speak

This piece first appeared in the September 3rd, 2017 edition of our Amor Mundi newsletter.

This week a number of professors at the annual American Political Science Association conference organized a protest against Professor John Yoo, who was invited to speak on two panels.

(Source: Ed Ritger)

Yoo is a professor of law at the University of California Berkeley, and was an author of the so-called “Torture Memos” which legitimized advanced torture techniques during the Bush Presidency. He advised President Bush that laws and treaties barring torture do not apply to interrogators when a president is exercising wartime powers. Many lawyers believe that Yoo’s memo legitimated acts of torture that violated both U.S. and international law. Political Scientists at the APSA meeting accused Yoo of violating APSA’s ethical guidelines, international human rights law, and of being a war criminal. Corey Robin penned a letter arguing against allowing Yoo to speak.

“In his celebrated diary of daily life in the Third Reich, Victor Klemperer writes:
‘If one day the situation were reversed and the fate of the vanquished lay in my hands, then I would let all the ordinary folk go and even some of the leaders, who might perhaps after all have had honourable intentions and not known what they were doing. But I would have all the intellectuals strung up, and the professors three feet higher than the rest; they would be left hanging from the lamp posts for as long as was compatible with hygiene.’
The reason Klemperer reserved such special contempt for the professors and intellectuals of the 1920s and 1930s was that professors and intellectuals played a special role in bringing on the horrors of the Nazi regime, as Claudia Koonz and other historians have documented. Not only did those professors and intellectuals provide some of the leading arguments for the rise of that regime, but they also served in that regime: as doctors, population experts, engineers, propagandists. And lawyers.
We now come to the matter of John Yoo, Emmanuel S. Heller Professor of Law at UC Berkeley, who has been invited to address the annual conference of the American Political Science Association, which will be meeting in San Francisco next week, and whose speech acts while serving as Deputy Assistant Attorney General in the Bush administration did so much to bring about the torture regime of that era. While there is no need to rehearse all of those speech acts, we might recall that in his lengthy memo of 2003, Yoo claimed that detainees of the US military could be legally stripped of their clothing “for a period of time” and interrogated naked. If you have trouble visualizing what that might mean, have a look at these photographs from Abu Ghraib. In that same memo, Yoo mooted the possibility that actions ordinarily considered illegal — including gouging an eye, dousing a prisoner with “scalding water, corrosive acid, or caustic substance,” or biting — might well be legal in time of war: the president’s powers as commander in chief were that broad.
When it comes to torture, our minds often drift to the torturer or his higher-ups in the Pentagon and the CIA. But as Jane Mayer documented in The Dark Side, the torture regime of George W. Bush was very much a lawyers’ regime. As one of Yoo’s colleagues told Mayer, “It’s incredible, but John Yoo and David Addington were running the war on terror almost on their own.” Yoo’s memos were not the idle speculations of a cloistered academic; stamped with the seal of the Office of Legal Counsel (OLC) at the Justice Department, they had the force of law, issuing binding interpretations of existing statutes that could only be overturned by the Attorney General. As Mayer explains, “For Yoo’s allies in the White House, his position at OLC was a political bonanza. It was like having a personal friend who could write medical prescriptions.” Harvard Law Professor Jack Goldsmith, who headed the OLC in 2003, adds that Yoo-type memos were essentially “get-out-of-jail-free cards.” That is why former CIA head George Tenet has written:
Despite what Hollywood might have you believe, in situations like these [the capture, interrogation, and torture of Al Qaeda logistics chief Abu Zubayda] you don’t call in the tough guys; you call in the lawyers.
That’s how powerful John Yoo was….
I fear that with this invitation to Yoo to address our profession, as if he were simply the author of controversial and heterodox opinions rather than the architect of a regime of torture and barbarity, the American Political Science Association has written itself a chapter in those future histories.”

Numerous political scientists agreed with Robin. Several videos on Twitter show most of the room standing and turning their backs on Yoo when he got up to speak. Not wholly unreminiscent of what we saw students at Middlebury College do last spring. Except there was no audible disruption. Noted members of the field stand, hold Guantanamo-orange signs that read: “Stand up to torture.” Which, in a way, is literally what they are doing.

The political scientists and theorists in the room did not disrupt Yoo’s speech, but staged a fairly routine act of political protest. Turning one’s back: a sign of disrespect. Holding a protest sign: a way to be heard without speaking. Protest is an important and noble way of expressing oneself, one we both support.

But as we scrolled through the photos and watched the videos we were filled with a certain unease. There is little question that Yoo’s work during the Bush administration is ethically questionable, to say the least. But, we wonder if protesting his appearance on an academic panel was not a bad political move on the part of political scientists?

Robin argues that we should not treat Yoo as if he simply represented a heterodox or controversial opinion. No, he argues, we should treat him as a war criminal. If he is a war criminal, he may still have a constitutional right to speak, but we may also feel justified in exercising our constitutional right to protest his invitation.

But how do we have a conversation about the claim that Yoo is a war criminal? He has not been charged with war crimes even after eight years of a Democratic Presidency. If he hasn’t been charged (let alone found guilty) of war crimes, should we nevertheless exile him from democratic and intellectual debates? Or do we have a democratic and intellectual and political responsibility to listen to him?

It strikes us that protests calling for Yoo to be charged and tried for war crimes are perfectly justified. So too are calls for him to be held legally and morally responsible. But it is problematic for an academic organization to exclude Yoo simply because some people believe he is a war criminal?

The problem with the call for Yoo to be prevented from speaking is that those making this demand have not done the necessary work of persuading others that Yoo is in fact guilty. They assume Yoo is guilty. They may be right. But in a democracy with a functioning legal system, Yoo is innocent until proven guilty. And the fact is that despite numerous calls to prosecute Yoo, he has not even been charged. That suggests that there is quite a disagreement in our country over Yoo’s guilt or innocence. But instead of trying to make that case, those would prevent him from speaking simply announce, repeatedly, that he is guilty and should not be allowed to speak.

We see those making this argument succumbing to a basic fallacy. They think that because they have convinced themselves of something, they have satisfied the burden of making their case. Those who don’t understand Yoo’s guilt are simply wrong. But in a democracy, winning an argument means not convincing oneself and one’s allies, but persuading others, namely a majority or at least a substantial plurality. Instead of working to persuade, Robin and others operate as if the question of Yoo’s guilt is settled.

Robin’s argument about the responsibility of intellectuals calls to mind Arendt’s understanding of Eichmann. But the analogy is imperfect. Yes, like Eichmann, Yoo did not personally kill anyone. And Yoo organized systems of torture while Eichmann was responsible for organizing the killing of millions of Jews. But unlike Eichmann, Yoo was operating within the lines of a democratic political system. And unlike Eichmann who bureaucratically set in motion the mass murder of innocents simply because of their religion, Yoo legally rationalized the torture of a small number of terrorists who may or may not have had information that might lead to the saving of thousands of American lives. Yoo might be responsible for the torture and murder of individuals who may or may not have been guilty of terrorism, but comparing Yoo to Nazi intellectuals who excused or rationalized the denaturalization and mass-murder of Jews is disingenuous.

The question is, do we recognize John Yoo as a member of our political and academic communities? Does he get to speak where we speak? Does he get to share his thoughts, work, and research, even though it contradicts, undermines, and offends what we stand for? We think the answer to that question has to be yes.

We recognize the uneasiness of this example — why should we listen or talk with someone who has rendered so many persons invisible, subject to violence and torture? But in the Arendtian spirit we cannot deny recognition to others based upon difference or opinion. Offering a space of public appearance is not an act of legitimation. Fundamentally, it is a human act of appearing before others in a space where our words and actions can be recognized, good or otherwise. If I listen to someone, it does not mean that I agree with them, it simply means that they too are a member of our political community and have a right to think, speak, and be heard. And there, in that space of being heard, in the messy web of human relationship, we have a moral and ethical obligation to hold one another accountable for what is said and done. If we deny that space of appearance, we are closing our eyes and ears to the world around us, unseemly as it sometimes strikes us.

There are limits to the responsibility to hear and recognize someone as part of our political community. There are people — like Adolf Eichmann, for example — whose acts are so evil and so repulsive in their denial of the very essence of what political community stands for that to recognize them would be to undermine the very ideals of that community. In such instances, we can make the political judgment that someone should be expelled from the political community and we can try to persuade others to agree with us. That was Arendt’s view and it is why she believed that Eichmann should have been killed for his crimes. But in our judgment Professor John Yoo has not in any way approached such a standard of evil that would render him unfit to be heard and argued with. On the contrary, Yoo is the kind of person we need to argue with head on. We should seek to convince him of his errors; we may even, in doing so, become aware of some of our own.

Samantha Hill, Assistant Director of the Hannah Arendt Center for Politics and Humanities at Bard College, and Roger Berkowitz, Academic Director of the Hannah Arendt Center for Politics and Humanities at Bard College

One clap, two clap, three clap, forty?

By clapping more or less, you can signal to us which stories really stand out.